Karguth v. Donk Brothers Coal & Coke Company
| Decision Date | 14 July 1923 |
| Parties | ROSE K. KARGUTH, Appellant, v. DONK BROTHERS COAL & COKE COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Charles W Rutledge, Judge.
Reversed and remanded (with directions).
Joseph T. Strubinger and Percy Werner for appellant.
(1) The trial court rightly overruled defendant's demurrer to the evidence at the close of all the evidence in the case and rightly allowed the case to go to the jury. It did not conclusively appear that the driver in the commission of the negligent act was not subject to the control of defendant. The entire evidence supported a reasonable inference that the driver, in executing the request that the customer Baublitz made of the defendant Donk Brothers that the coal which he purchased should be placed in his cellar, was acting for, and was, in the performance of that work, subject to the control of Donk Brothers. Waters v. Fuel Co., 52 Minn. 474 38 Am. St. 564; French v. Boston Coal Co., 81 N.E 265; Cain v. Hugh Nawn Contracting Co., 202 Mass. 237; O'Neill v. Blase, 94 Mo.App. 648; Brackett v. Lubke, 4 Allen, 138, 81 Am. Dec. 694; Simmons v. Murray, 209 Mo.App. 248; Thompson v. Portland Hotel Co., 209 Mo.App. 476; Grothmann v. Hermann, 241 S.W. 461. (2) Plaintiff's case rested on the reasonable inference of the right of control in defendant over the particular work in question which the jury was entitled to draw from the direct evidence in the case, to-wit, that, except as to the preference shown their regular drivers in sending them out first, all the drivers engaged in the delivery of defendant's coal to its customers, whether regular drivers or casual drivers, were treated alike; that special directions as to the mode of delivering coal to meet the wishes of its customers were received at the general office of the defendant and transmitted from the general office to the branch offices; that defendant had regular dealings with its customer, Baublitz, who indicated a special mode of delivery, and defendant had on prior occasions sent out a chute with the coal to enable the driver to place the coal in the cellar; and that it had the right to control him as to when, where and how he should accomplish the depositing of the coal on its customer's premises. "The inference which should be drawn from the evidence as to the relations of the driver, the owner of the team, and the defendant were not matters of law, but questions of fact to be decided by the jury under suitable instructions." Cain v. Hugh Nawn Contracting Co., 202 Mass. 237; Finnegan v. Railway, 244 Mo. 608, 653. (3) A presumption is a rule of law, whereas an inference is merely a permissible conclusion based upon facts which have been proved or as to the existence of which there is evidence. The learned Circuit Judge lost sight of this distinction. (4) Defendant made no attempt to show that, by virtue of a contract between them, Cora Maas retained the right of control over the driver as to all his acts performed while in defendant's service. A prima-facie case having been made out, the burden shifted to the defendant to show that it had not the right of control over the driver Dandridge in the execution of the particular work he had in hand, to-wit, the putting of the coal into its customer's cellar. It was in a better position than plaintiff to know what the contract was. Perry v. Ford, 17 Mo.App. 212; Knoche v. Pratt, 194 Mo.App. 300; Dillon v. Hunt, 82 Mo. 150; Holloway v. Schield, 243 S.W. 163. (5) The circumstances and occupation of Cora Maas tend to negative the conclusion that she was an independent contractor, as to the work in question. Wallace v. Southern Cotton Oil Co., 91 Tex. 781. (6) The defendant, having by an instruction asked the judgment of the jury upon the question whether the evidence was such as to justify the drawing of a reasonable inference that the defendant, if present at the time and place of the accident, had authority to direct the driver of the wagon where and as to the manner in which the coal should be thrown from the wagon, is precluded from contending that it was error to give the instruction, or that there was no evidence to which it was applicable. Gayle v. Missouri Car & Foundry Co., 177 Mo. 427; Murphy v. Mack, 239 S.W. 595, 596; Hudson v. Hall, 239 S.W. 152; Hayes v. Bunch, 91 Mo.App. 472; Berkson v. K. C. Cable Ry. Co., 144 Mo. 211, 219; Flori v. Dolph, 192 S.W. 950. (7) The trial court, in setting aside the verdict of the jury on the authority of Guthrie v. Holmes, and on the ground that plaintiff's primafacie case had been completely overcome by the defendant's testimony, fell into the error of supposing that plaintiff's prima-facie case rested upon a mere presumption arising out of the fact that the wagon carried the sign of Donk Brothers Coal & Coke Company, the defendant. It overlooked, too, the fact that in Guthrie v. Holmes, the chauffeur had been given specific directions, and that the vehicle was a pleasure and not a commercial vehicle. As a matter of fact, plaintiff's case rested on the direct evidence of the relations to each other of Donk Brothers Coal & Coke Company; Baublitz, their customer; Dandridge, the driver, and the circumstances and conditions under which the particular work in question was being done at the time plaintiff was injured, and the reasonable inferences to be drawn therefrom. Vaughan v. Davis & Sons, 221 S.W. 782; Gorry v. Boehmer Coal Co., 241 S.W. 977; Mann v. Stewart Sand Co., 243 S.W. 406. (8) The act of throwing coal directly from a wagon across a public sidewalk, in use by pedestrians, constituted negligence. Alexander v. Star Chronicle Pub. Co., 197 Mo.App. 601. (9) In deciding whether it was proper for the court in the first instance to have submitted to a jury the issue as to whose work the driver was doing in getting the coal from the wagon bed through the cellar door into the basement, the evidence of the plaintiff must not only be taken as true, but it must be viewed in the light most favorable to plaintiff, and must be taken to admit as true not only every fact shown, but every inference that might reasonably be deduced therefrom. Hall v. Coal & Coke Co., 260 Mo. 351-365; Whiteaker v. Ry. Co., 252 Mo. 438, 452.
Jourdan, Rassieur & Pierce for respondent.
(1) Plaintiff's case is founded on the theory that a servant of the defendant in the scope of his employment caused the injury. The burden is, therefore, on plaintiff to establish both the agency and employment. 1 Labatt's Master & Servant (2 Ed.) sec. 16, p. 54; Hays v. Hogan, 273 Mo. 1; Guthrie v. Holmes, 272 Mo. 233; Killroy v. Crane Agency, 203 Mo.App. 310; Michael v Pulliam, 215 S.W. 763; Mayes v. Fields, 217 S.W. 589. (2) Where the servant who causes the injury is in the general employment of another than defendant, the presumption arises that such servant was acting for his general master, and this presumption may be overcome only by evidence showing actual control on the part of the defendant or the right by the defendant to control such servant. Orders to such servant by defendant as to where to get and where to deliver goods of defendant is not evidence of such control. 1 Shear & Red. on Neg. sec. 158, note 1; Guthrie v. Holmes, 272 Mo. 215, 233; Killroy v. Crane Agency, 203 Mo.App. 310; O'Hara v. Laclede Gas Light Co., 131 Mo.App. 428; O'Hara v. Laclede Gas Light Co., 244 Mo. 395; Flori v. Dolph, 192 S.W. 950. (3) Plaintiff was injured by coal thrown from a wagon. It is admitted by plaintiff that the wagon from which the coal was thrown was not owned by defendant, but by a third party. The only evidence as to control over the driver in charge of the wagon was that he was employed by a third party who carried liability insurance to protect against damage from his acts; that the defendant had no right to control him and that defendant exercised none. The presumption under such facts was that the servant was controlled by his general employer and plaintiff failed to make a case for the jury in not showing otherwise. Sluder v. Transit Co., 189 Mo. 107, 140; Guthrie v. Holmes, 272 Mo. 215, 233; 1 Shear & Red. on Neg. sec. 158, note 1; O'Hara v. Laclede Gas Light Co., 131 Mo.App. 428; O'Hara v. Laclede Gas Light Co., 244 Mo. 409; Singer v. McDermott, 62 N.Y.S. 1086; Glassman v. Harry, 182 Mo.App. 304; Philadelphia & R. Coal & Iron Co. v. Barrie, 179 F. 50; Neuschaefer v. Colonial Co., 180 N.Y.S. 413; Ash v. Century Lbr. Co., 133 N.W. 888; Stewart v. Cal. Improvement Co., 63 P. 177; Frerker v. Nicholson, 92 P. 224; Nicholson v. McGovern Undertaking Co., 92 P. 225; Fisher v. Levy Circulating Co., 182 Ill.App. 393; Johnson Chair Co. v. Agresto, 73 Ill.App. 384; Schmedes v. Deffaa, 138 N.Y.S. 931; Vasligato v. Yellow Pine Co., 143 N.Y.S. 817; Hanatsek v. Wilson, 146 N.Y.S. 1016; Cattini v. American Ry. Express Co., 196 N.Y.S. 10; Grastataro v. Brodie, 179 N.Y.S. 324; Miranker v. Williams, 158 N.Y.S. 273. (4) The plaintiff offered no evidence to show ownership of the wagon or control over the driver causing the injury, and while it is true that, in considering a demurrer, the plaintiff is entitled to reasonable inferences, the jury should not be allowed to guess as to the facts. McGee v. Railroad, 214 Mo. 543; McCreery v. United Railways Co., 221 Mo. 31. (5) Although the court gave reasons for awarding the new trial, if there were any other errors to justify setting aside the verdict the court's action should be affirmed. Craton v. Huntzinger, 187 S.W. 48. (6) Where the question of liability for the acts of a driver turns upon the question as to the ownership and control of the wagon and driver, an insurance policy insuring against loss "by reason of the ownership, maintenance and use of such vehicle, including carrying of goods...
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